Being arrested for driving under the influence (DUI) in California can have numerous consequences. First, you have a criminal charge against you that could result in jail time, fines, and other criminal penalties. 

However, you also have a second legal proceeding – the California Department of Motor Vehicles (DMV) administrative review to suspend your license. The DMV administrative hearing only deals with your driving privileges. They cannot sentence you to jail or impose other criminal penalties. However, the DMV can suspend your driver’s license for a year or longer.

Therefore, it is crucial that you understand your legal rights at a DMV administrative hearing. For first-time DUI offenders, the process may be unfamiliar. Contacting an experienced California DUI attorney can give you the best chance of winning at a DMV license suspension hearing.

What is a California DMV Administrative Hearing for DUI Offenses?

After DUI arrests, police officers take the person’s driver’s license immediately. Then, he issues the person a Notice of Suspension that allows the person to continue driving for 30 days. The police officer must forward a copy of the Notice of Suspension and the driver’s license to the DMV.

If you receive a Notice of Suspension after a DUI arrest, you must act quickly. You have just ten days to request a DMV administrative hearing. If you do not request the hearing within ten days, the DMV automatically suspends your driver’s license. 

A DMV hearing is your opportunity to present evidence proving your driver’s license suspension was not justified. If the DMV does not find evidence to support a suspension, it restores your driving privileges. 

However, if you took a chemical blood, breath, or urine test and had a BAC (blood alcohol content) of .08% or higher, your driver’s license is suspended for four months for a first-time offense. A second DUI offense within ten years results in a one-year driver’s license suspension.

If you are under 21 years of age, and the chemical test or a preliminary alcohol screening (PAS) test shows a blood alcohol level of .01% or higher, you lose your driver’s license for one year.

It is important to remember that the DMV revocation of your driving privileges is separate from any criminal penalties ordered by the court. A judge could suspend your driver’s license for a longer period, depending on the circumstances of your DUI conviction. 

What Are My Rights at a California DMV Administrative Hearing?

A DMV hearing is more relaxed than a criminal court case. A DMV hearing officer conducts the hearing instead of a judge. In many cases, the DMV hearing officer has no formal legal training. The DMV holds administrative hearings at a Driver Safety Office.

You have the right to be represented by a California DUI defense lawyer at the hearing, at your own expense. Your or your attorney has the right to:

• Review the evidence against you
• Cross-examine any witnesses presented by the DMV
• Testify on your own behalf
• Present evidence and witnesses on your behalf
• Subpoena witnesses to testify, including the arresting police officer
• Subpoena evidence and documents to use in your defense

You also have the right to receive a written decision after the hearing. If the decision is against you, you may request that the DMV conducts an administrative review. You also have the right to appeal the decision to Superior Court.

Who Has the Burden of Proof at a DMV Hearing in a DUI Case?

The hearing at the DMV only deals with your driving privileges. It does not decide whether or not you violated a criminal statute. The things a hearing officer considers when determining whether to suspend your driver’s license include:

• Whether you were in physical control or driving the vehicle
• If the arresting officer had probable cause to make a DUI stop
• Whether the DUI arrest was lawful
• If you were operating the motor vehicle with a BAC of .08% or higher 
• Whether drugs or alcohol impaired your driving abilities

Unfortunately, the burden of proof and evidence required at a DMV hearing is lower than in a criminal DUI case. Therefore, you are going up against the police officer and the DMV at a disadvantage. Having a California DUI lawyer who can challenge the chemical results, field sobriety tests, and probably increases your chance of reversing the license suspension.

How Do I Schedule a DMV Administrative Hearing After a DUI Arrest in California?

Remember, you have just ten days to request a DMV hearing. If you hire a California DUI defense attorney, your lawyer can request the hearing if you hire him within just a few days. If not, you need to request the hearing and then decide whether you want to hire a DUI lawyer to represent you at the administrative hearing. 

Hearing requests for DUI driver’s license suspensions must be made to the applicable Driver Safety Office. You must provide your full name, driver’s license number, and date of birth when requesting a hearing. You may also need to provide details of your DUI arrest, including the date of arrest, arresting officer’s name and ID number, and any tests used to determine your impairment. 

Generally, you must request a hearing by telephone or fax. The information you need to provide is on your DUI arrest ticket or the Notice of Suspension. 

Defending Yourself at a California DMV License Suspension Hearing

The defenses you present at a DMV administrative hearing depend on the facts and circumstances of your DUI arrest. Potential DUI defenses your attorney might raise at a DMV hearing could include, but are not limited to:

The DUI Arrest Was Unlawful

Your attorney may argue that the police officer lacked probable cause to make a traffic stop and/or DUI arrest. Without probable cause, the evidence against you could be thrown out of court. Therefore, it could be a compelling argument at a DMV hearing.

You Were Not Driving 

You might convince the DMV hearing officer to reinstate your driving privileges by arguing you were not driving or in physical control of the motor vehicle. If the police officer did not see you driving the car and there is no other evidence, the DMV hearing officer may not suspend your driver’s license.

Title 17 Violations for Chemical Tests

Title 17 of the Code of Regulations has strict guidelines for collecting, storing, and testing chemical samples for DUI cases. Violations of these regulations could result in the BAC results being inadmissible because of possible contamination or other problems. If you can prove Title 17 violations, it may be sufficient for the DMV officer to rule in your favor.

Challenging the Accuracy of the BAC Results

Some medical conditions can result in falsely high BAC levels, including diabetes, GERD, and acid reflux. A high protein diet could also cause your BAC results to be false. If you can prove that a health condition or other issue not related to alcohol caused higher BAC levels, you could win your DMV hearing.

You Did Not Willfully Refuse a Chemical DUI Test

Suppose the officer did not explain that refusing to submit to a blood or breath test would result in an automatic driver’s license suspension. In that case, the DMV hearing officer may find that the suspension of your driving privileges should be set aside. However, proving you were not informed could be challenging when it is your word against the police officer’s testimony.

However, if you did not willfully refuse to submit to the test after the officer asked for a sample, that could be a different story. Some medical conditions prevent a person from blowing strong enough for a breath test. Therefore, if the officer did not request a blood test after you “failed” to blow hard enough on the breath test, that is not your fault. 

Illegal DUI Checkpoint Arrests

California permits law enforcement agencies to conduct DUI checkpoints. However, the agencies must follow strict rules for establishing and operating the DUI checkpoints. Failing to follow those rules could result in an unlawful arrest.

Failure to Conduct a 15-Minute Observation Period

Title 17 requires that a police officer monitor a driver for at least 15 minutes before a breath test or blood test. If the person vomits, smokes, eats, drinks, regurgitates, or does anything to compromise the test, the waiting period must begin again. Failing to conduct the observation period correctly could result in inaccurate BAC results.

How Do I Reinstate My Driver’s License After a DUI in California?

At the end of your driver’s license suspension, you can apply to reinstate your driver’s license. To be eligible to reinstate your driving privileges, you must show:

• Enroll in California DUI school
• Pay a $125 reinstatement fee to the California DMV
• Submit an SR-22 insurance form

In some cases, you may need to install an ignition interlock device (IID) before you can begin driving again. The best way to avoid losing your driving privileges is to request a DMV administrative hearing and hire a California DUI lawyer to help you fight to keep your driver’s license. 

Is it Worth Requesting a DMV Administrative Hearing After a DUI Arrest?

Yes, you could retain your driving privileges until the court resolves your DUI case. Also, your California DUI attorney has the opportunity to review the evidence against you and cross-examine the arresting officer. This information could be invaluable for determining the best DUI defense strategy. It also helps when negotiating a DUI plea agreement to know how a police officer may perform in court and the strength of the evidence against you. 

A police officer takes your driver’s license when he arrests you for DUI in California. The officer gives you a Notice of Suspension. The Notice of Suspension acts like a temporary driver’s license. You may drive for 30 days using the Notice of Suspension.

However, if you do not request a hearing from the California Department of Motor Vehicles (DMV) within ten days of your arrest, the DMV automatically suspends your driver’s license. 

Therefore the most important thing you need to know about a Notice of Suspension is to request a DMV license suspension hearing known as an APS hearing immediately after being arrested for DUI. 

Then, you might want to seek legal advice from a California DUI defense lawyer. You have the right to legal counsel at a DMV administrative hearing. Having an experienced DUI attorney handle the hearing could improve your chance of avoiding a suspended or revoked driver’s license after a DUI arrest.

How Long Will I Lose My Driving Privileges After a DUI Arrest in California?

In 1990, the Admin Per Se (APS) program began in California to deter driving under the influence of alcohol or drugs. Drivers face an administrative driver’s license suspension if they:

• Have a BAC of .08% or higher while driving a non-commercial motor vehicle
• Are under 21 years of age with a BAC of .01% while operating a motor vehicle
• Have a BAC of .04% or higher while driving a commercial motor vehicle
• You refuse to submit to chemical testing, including a blood test or breath test 

 The DMV suspends your driving privileges for four months for a first-time DUI arrest. If you are arrested on a DUI charge again within ten years, the license suspension period increases to one year.

Furthermore, suppose you are on DUI probation and are arrested for driving under the influence with a BAC of .01% or more. In that case, the DMV imposes a concurrent one-year suspension for the violation of DUI probation. 

Refusal to take a preliminary alcohol screening (PAS) or other chemical tests while on DUI probation, you face additional DMV administrative penalties. If the DUI convictions were under California Vehicle Code §§23152 or 23153, the DMV would impose:

• First offense – A one-year driver’s license suspension or two-year revocation period if you are on DUI probation
• Second offense with ten years of another violation of DUI – A two or three-year revocation of your driving privileges
• Third or subsequent offense with ten years of any of the above convictions, violations, or separate administrative decisions – A three-year revocation of driving privileges

After your driver’s license suspension, you can reinstate your driving privilege. However, you must meet specific criteria and pay all applicable fees and costs to reinstate your driver’s license after DUI suspension in California. 

How Do I Reinstate My Driver’s License After a DUI Arrest in California? 

You must wait until after the DMV suspension or revocation to reinstate your driving privileges. For license reinstatement, you must:

• Pay a $125 reinstatement fee to the DMV
• Provide proof of insurance (SR-22 form) or another acceptable form of financial responsibility (i.e., surety bond, $35,000 cash deposit, or self-insurer certificate)
• Maintain SR-22 insurance or proof of financial responsibility for three years

It is important to note that the DMV suspending your license is different from judges suspending or revoking driving privileges in DUI cases. The DMV administrative procedure is separate from any actions taken by criminal court judges after a DUI conviction. 

A judge may also suspend your driving privileges as part of a DUI sentence. In addition, the judge could impose longer suspension or revocation periods. In some cases, a judge revokes driving privileges permanently. 

Can I Get a Restricted Driver’s License if the DMV Suspends My Driving Privileges?

Yes, you may be eligible to get a restricted driver’s license. There are two types of restricted driver’s licenses in California. 

Restricted Driver’s License for Work and DUI School

You may drive to and from work, during the course of employment, and to and from DUI school. To be eligible for a restricted driver’s license:

• Not have a prior DUI offense (this is your first DUI)
• Have completed a chemical DUI test for BAC levels
• You are 21 years old or older
• Your BAC was .08% or higher for a non-commercial motor vehicle OR .04% or higher for a commercial motor vehicle
• Your driving privileges have not been revoked or suspended for another reason

If you meet the eligibility requirements, to receive a work/DUI school restricted driver’s license, you must:

• Provide proof of enrollment in DUI school
• Pay a $125 reissue fee to the DMV
• File proof of SR-22 or financial responsibility 
• Wait for the end of the 30-day suspension period from the suspension date

Restricted Driver’s License With Ignition Interlock Device 

The requirements to be eligible for an IID restricted driver’s license are almost identical to the work/DUI school restricted license requirements. However, this does not need to be your first DUI offense. The requirements are:

• You completed a chemical DUI test for BAC levels
• You are 21 years old or older
• Your BAC was .08% or higher for a non-commercial motor vehicle; .04% or higher for a commercial motor vehicle; OR, .01% while on DUI probation
• Your driving privileges have not been revoked or suspended for another reason

If you meet the eligibility requirements, to receive an IID restricted driver’s license, you must:

• Provide proof of enrollment in DUI school
• Pay a $125 reissue fee to the DMV
• File proof of SR-22 or financial responsibility 
• Install an approved ignition interlock device and provide verification of IID installation

An IID restricted driver’s license does not require you to wait for the 30-day suspension period to end before applying for a restricted driver’s license. Also, you are not limited to when you can drive or where you can drive. You may qualify for an IID restricted driver’s license, even if you have prior DUIs on your driving record.

Reinstatement of your driving privileges and applying for a restricted driver’s license is different from challenging a Notice of Suspension. Reinstatement and restricted driver’s licenses are a way of dealing with a suspension of driving privileges. Challenging a Notice of Suspension is an attempt to avoid losing your driver’s license after a DUI in California. 

Can I Fight a California DMV Driver’s License Suspension After Receiving a Notice of Suspension?

Yes, you can fight an administrative suspension or revocation of driving privileges by the DMV. However, you must request the DMV hearing within ten days. If you choose to represent yourself, you need to know your legal rights regarding a DMV suspension hearing.

• You have the right to review all evidence against you
• You can cross-examine witnesses presented by the DMV, including the arresting police officer
• You may subpoena witnesses to testify 
• You have the right to subpoena documents and evidence
• You may present evidence at the DMV hearing to support your case
• You have the right to testify on your behalf

A DMV hearing officer hears your case. The DMV issues a written decision regarding your case. If the DMV hearing officer does not find sufficient evidence to suspend or revoke your driver’s license, he will rule in your favor. However, the DMV officer may allow the suspension to stand.

If the ruling is against you, you have the right to appeal the decision to the Superior Court or request the DMV conduct an administrative review of your case. 

Unfortunately, the evidence necessary to prove the DMVs case is less than the evidence required for a DUI conviction. Therefore, having a California DUI defense attorney argue the case could give you a better chance of winning. An experienced DUI attorney understands how to present evidence, cross-examine witnesses, and make a compelling argument for not suspending your driving privileges.

Common DUI Defenses Used When Challenging a DMV Notice of Suspension

Many of the DUI defenses your California DUI lawyer uses at a criminal court trial applies when fighting a Notice of Suspension. Common DUI defenses your attorney might use, include, but are not limited to:

• Challenging whether the police officer had probable cause for a traffic stop or DUI arrest
• Title 17 violations regarding the collection, storage, and testing of blood, breath, and urine samples for alcohol or drugs
• Challenging the accuracy of BAC tests based on health conditions, faulty machinery, operator errors
• DUI breath test errors because of health conditions, mouth alcohol, and ketosis
• Rising blood alcohol levels after a DUI arrest
• Inaccuracy of field sobriety tests (FSTs) because of environmental conditions, the person’s health, or errors made by police officers
• Lack of evidence proving your driving abilities were impaired by alcohol or drugs
• You were not driving or in physical control of the vehicle 
• Police used an unlawful DUI  checkpoint to stop and arrest you for drunk driving

Contact a California DUI defense attorney if you are arrested for driving under the influence. An attorney helps you fight the Notice of Suspension and fight DUI charges to avoid a conviction, jail, fines, and other DUI penalties.

A police officer takes your driver’s license when he arrests you for DUI in California. The officer gives you a Notice of Suspension. The Notice of Suspension acts like a temporary driver’s license. You may drive for 30 days using the Notice of Suspension.

However, if you do not request a hearing from the California Department of Motor Vehicles (DMV) within ten days of your arrest, the DMV automatically suspends your driver’s license. 

Therefore the most important thing you need to know about a Notice of Suspension is to request a DMV license suspension hearing known as an APS hearing immediately after being arrested for DUI. 

Then, you might want to seek legal advice from a California DUI defense lawyer. You have the right to legal counsel at a DMV administrative hearing. Having an experienced DUI attorney handle the hearing could improve your chance of avoiding a suspended or revoked driver’s license after a DUI arrest.

How Long Will I Lose My Driving Privileges After a DUI Arrest in California?

In 1990, the Admin Per Se (APS) program began in California to deter driving under the influence of alcohol or drugs. Drivers face an administrative driver’s license suspension if they:

• Have a BAC of .08% or higher while driving a non-commercial motor vehicle
• Are under 21 years of age with a BAC of .01% while operating a motor vehicle
• Have a BAC of .04% or higher while driving a commercial motor vehicle
• You refuse to submit to chemical testing, including a blood test or breath test 

 The DMV suspends your driving privileges for four months for a first-time DUI arrest. If you are arrested on a DUI charge again within ten years, the license suspension period increases to one year.

Furthermore, suppose you are on DUI probation and are arrested for driving under the influence with a BAC of .01% or more. In that case, the DMV imposes a concurrent one-year suspension for the violation of DUI probation. 

Refusal to take a preliminary alcohol screening (PAS) or other chemical tests while on DUI probation, you face additional DMV administrative penalties. If the DUI convictions were under California Vehicle Code §§23152 or 23153, the DMV would impose:

• First offense – A one-year driver’s license suspension or two-year revocation period if you are on DUI probation
• Second offense with ten years of another violation of DUI – A two or three-year revocation of your driving privileges
• Third or subsequent offense with ten years of any of the above convictions, violations, or separate administrative decisions – A three-year revocation of driving privileges

After your driver’s license suspension, you can reinstate your driving privilege. However, you must meet specific criteria and pay all applicable fees and costs to reinstate your driver’s license after DUI suspension in California. 

How Do I Reinstate My Driver’s License After a DUI Arrest in California? 

You must wait until after the DMV suspension or revocation to reinstate your driving privileges. For license reinstatement, you must:

• Pay a $125 reinstatement fee to the DMV
• Provide proof of insurance (SR-22 form) or another acceptable form of financial responsibility (i.e., surety bond, $35,000 cash deposit, or self-insurer certificate)
• Maintain SR-22 insurance or proof of financial responsibility for three years

It is important to note that the DMV suspending your license is different from judges suspending or revoking driving privileges in DUI cases. The DMV administrative procedure is separate from any actions taken by criminal court judges after a DUI conviction. 

A judge may also suspend your driving privileges as part of a DUI sentence. In addition, the judge could impose longer suspension or revocation periods. In some cases, a judge revokes driving privileges permanently. 

Can I Get a Restricted Driver’s License if the DMV Suspends My Driving Privileges?

Yes, you may be eligible to get a restricted driver’s license. There are two types of restricted driver’s licenses in California. 

Restricted Driver’s License for Work and DUI School

You may drive to and from work, during the course of employment, and to and from DUI school. To be eligible for a restricted driver’s license:

• Not have a prior DUI offense (this is your first DUI)
• Have completed a chemical DUI test for BAC levels
• You are 21 years old or older
• Your BAC was .08% or higher for a non-commercial motor vehicle OR .04% or higher for a commercial motor vehicle
• Your driving privileges have not been revoked or suspended for another reason

If you meet the eligibility requirements, to receive a work/DUI school restricted driver’s license, you must:

• Provide proof of enrollment in DUI school
• Pay a $125 reissue fee to the DMV
• File proof of SR-22 or financial responsibility 
• Wait for the end of the 30-day suspension period from the suspension date

Restricted Driver’s License With Ignition Interlock Device 

The requirements to be eligible for an IID restricted driver’s license are almost identical to the work/DUI school restricted license requirements. However, this does not need to be your first DUI offense. The requirements are:

• You completed a chemical DUI test for BAC levels
• You are 21 years old or older
• Your BAC was .08% or higher for a non-commercial motor vehicle; .04% or higher for a commercial motor vehicle; OR, .01% while on DUI probation
• Your driving privileges have not been revoked or suspended for another reason

If you meet the eligibility requirements, to receive an IID restricted driver’s license, you must:

• Provide proof of enrollment in DUI school
• Pay a $125 reissue fee to the DMV
• File proof of SR-22 or financial responsibility 
• Install an approved ignition interlock device and provide verification of IID installation

An IID restricted driver’s license does not require you to wait for the 30-day suspension period to end before applying for a restricted driver’s license. Also, you are not limited to when you can drive or where you can drive. You may qualify for an IID restricted driver’s license, even if you have prior DUIs on your driving record.

Reinstatement of your driving privileges and applying for a restricted driver’s license is different from challenging a Notice of Suspension. Reinstatement and restricted driver’s licenses are a way of dealing with a suspension of driving privileges. Challenging a Notice of Suspension is an attempt to avoid losing your driver’s license after a DUI in California. 

Can I Fight a California DMV Driver’s License Suspension After Receiving a Notice of Suspension?

Yes, you can fight an administrative suspension or revocation of driving privileges by the DMV. However, you must request the DMV hearing within ten days. If you choose to represent yourself, you need to know your legal rights regarding a DMV suspension hearing.

• You have the right to review all evidence against you
• You can cross-examine witnesses presented by the DMV, including the arresting police officer
• You may subpoena witnesses to testify 
• You have the right to subpoena documents and evidence
• You may present evidence at the DMV hearing to support your case
• You have the right to testify on your behalf

A DMV hearing officer hears your case. The DMV issues a written decision regarding your case. If the DMV hearing officer does not find sufficient evidence to suspend or revoke your driver’s license, he will rule in your favor. However, the DMV officer may allow the suspension to stand.

If the ruling is against you, you have the right to appeal the decision to the Superior Court or request the DMV conduct an administrative review of your case. 

Unfortunately, the evidence necessary to prove the DMVs case is less than the evidence required for a DUI conviction. Therefore, having a California DUI defense attorney argue the case could give you a better chance of winning. An experienced DUI attorney understands how to present evidence, cross-examine witnesses, and make a compelling argument for not suspending your driving privileges.

Common DUI Defenses Used When Challenging a DMV Notice of Suspension

Many of the DUI defenses your California DUI lawyer uses at a criminal court trial applies when fighting a Notice of Suspension. Common DUI defenses your attorney might use, include, but are not limited to:

• Challenging whether the police officer had probable cause for a traffic stop or DUI arrest
• Title 17 violations regarding the collection, storage, and testing of blood, breath, and urine samples for alcohol or drugs
• Challenging the accuracy of BAC tests based on health conditions, faulty machinery, operator errors
• DUI breath test errors because of health conditions, mouth alcohol, and ketosis
• Rising blood alcohol levels after a DUI arrest
• Inaccuracy of field sobriety tests (FSTs) because of environmental conditions, the person’s health, or errors made by police officers
• Lack of evidence proving your driving abilities were impaired by alcohol or drugs
• You were not driving or in physical control of the vehicle 
• Police used an unlawful DUI  checkpoint to stop and arrest you for drunk driving

Contact a California DUI defense attorney if you are arrested for driving under the influence. An attorney helps you fight the Notice of Suspension and fight DUI charges to avoid a conviction, jail, fines, and other DUI penalties.

The recreational use of marijuana is legal in California. California also legalized medical marijuana. However, driving under the influence of marijuana is a criminal offense if the marijuana impairs your ability to drive. 

Unlike alcohol, there is not a “per se” or legal limit for DUI of marijuana. Furthermore, sources disagree about the level of marijuana necessary to impair driving ability. Therefore, a key piece of evidence used in marijuana DUI cases is a police officer’s observation of a driver’s impairment. However, cases of DUI of marijuana based solely on observations of impairment may not stand up in court when challenged by a skilled California DUI defense attorney. 

What is the Observed Impairment Method for Determining Marijuana Use?

Since California does not set a legal limit for the amount of THC (delta-9-tetrahydrocannabinol) in a driver’s bloodstream, a chemical test alone is not generally sufficient to convict someone of driving under the influence of marijuana. Instead, you need evidence that the marijuana impaired the person’s ability to drive.

Many prosecutors use other evidence of driving under the influence of marijuana to obtain a DUID conviction. The evidence is based on observations of impairment by police officers and Drug Recognition Experts (DREs). DREs are police officers trained to recognize the signs of drug impairment in drivers.

Physical symptoms of drug impairment may include:

• Rapid heart rate
• Dilated pupils
• Red eyes
• The odor of marijuana on the person’s body
• Rapid breathing
• Slowed reaction time
• Dry mouth (“cotton” mouth)

Additionally, police officers observe the driver’s performance on Field Sobriety Tests (FSTs) and the driving patterns immediately before a DUI stop. A driver’s statements to the police and the presence of drug paraphernalia are also observations police officers use to determine drug impairment.

Prosecutors use the combined observations of the police officers or DREs to argue that the driver’s ability to operate the motor vehicle safely was impaired. Therefore, they are guilty of DUID of marijuana.

Problems With the Observed Impairment Method

The observed impairment method has several problems. Studies have shown that marijuana use can affect several driving-related skills. Marijuana use can slow reaction time, decrease divided attention, and cause problems with road tracking. 

However, after reviewing the research on the effects of marijuana use on driving, the NHTSA concluded that there are currently no evidence-based methods to detect marijuana-impaired driving. Many of the “signs of impairment” could be caused by other drugs, alcohol, distraction, illness, drowsiness, and other conditions and driver activities. 

Therefore, it is not possible to know whether police officers could use a unique combination of cues to determine marijuana-impaired driving with any high degree of accuracy. The information was provided in a Report to Congress in July 2017.

Research supported by the National Institute of Justice found that biofluid levels of THC did not correlate with performance on field sobriety tests. In addition, researchers observed standardized FSTs were not effective in detecting marijuana intoxication.

Using observations to detect marijuana-impaired driving can be highly subjective. Someone charged with DUID of marijuana based solely on the observations made by police officers during a DUI stop should fight the charges with the help of a California DUI defense lawyer.

New Methods of Detecting Marijuana Impairment for Drivers

According to studies conducted by researchers at Massachusetts General Hospital, a noninvasive brain imagining procedure is a reliable method for identifying marijuana impairment. Brain activation patterns that correlate to impairment from THC are measured by imaging technology. The technology used is known as functional near-infrared spectroscopy (fNIRS).

The study did not include roadside assessments of impaired driving. However, it did cite the advantages of a portable brain imaging device using this technology to determine marijuana impairment. 

The lead author stated that they believe brain-based testing could provide an objective and practical solution to testing for marijuana-impaired driving. However, further study is required.

Do I Have to Take a Chemical Test if I Am Stopped for DUID of Marijuana? 

California’s implied consent law means that drivers are presumed to have consented to a chemical test for drugs and alcohol if they are arrested for DUI. However, drivers are not required to submit to pre-arrest chemical tests. You can refuse a hand-held breathalyzer test or saliva swab before you are arrested without penalty.

However, after a DUI arrest, refusing to take a chemical test results in an automatic one-year driver’s license suspension, even if the prosecution drops the DUI charges or the court finds you not guilty. In addition, if you are convicted of DUI, refusal of a chemical test adds an extra two days in jail and nine months of DUI school to your sentence. 

Chemical Tests Are Unreliable for Detecting Marijuana Impairment 

There are several problems with chemical tests for marijuana impairment. First, chemical tests do not indicate with any reliability when the driver used marijuana. Second, the tests do not tell officers how much marijuana the person used. Third, experts do not agree on how much marijuana is necessary to impair driving ability.

Another problem is that test results may vary depending on the test used. Blood tests are the most common chemical test used for DUID of marijuana. A blood test indicates the presence of THC in a person’s system. 

Some studies found THC may be detected in a blood test for up to a month after a person uses marijuana. Urine tests can detect the presence of marijuana in a person’s system for up to ten days for a casual user. However, people that use marijuana frequently can have a positive urine test for up to four weeks or longer. 

Saliva tests have not been ruled admissible as evidence in cases of driving under the influence. Therefore, police officers use saliva tests as preliminary screening. But, again, you do not have to agree to take any drug test before you are arrested for DUID in California.

It is important to remember that a positive chemical test shows that you have marijuana in your system. It does not indicate when you used marijuana or how much marijuana you consumed. It also does not prove that you were impaired.

Contact a California DUI defense lawyer to discuss potential defenses to DUI of marijuana. In addition to challenging whether the marijuana in your system impaired your driving, there could be other defenses to driving under the influence of marijuana.

What Are the Penalties for DUI of Marijuana?

California Vehicle Code §23152(f) states it is unlawful for anyone under the influence of any drug to drive a vehicle. Therefore, a person violates this law by:

• Being under the influence of any drug, including marijuana
• While driving a vehicle
• And being unable to operate the vehicle with the ordinary care of a sober person because the drug impairs their mental and/or physical abilities

Medical marijuana is not a defense against DUI of marijuana. Therefore, you may have a prescription for medical marijuana, but you can still be arrested and convicted of driving under the influence of marijuana.

The penalties for DUID of marijuana are the same as DUI for alcohol. Most DUI marijuana cases are charged as misdemeanors. However, it is a wobbler offense. 

Wobbler offenses may be charged as felonies or misdemeanors. For example, if you cause an accident while driving under the influence of marijuana, the prosecutor may charge you with felony DUID of marijuana.

The penalties for a misdemeanor DUI of marijuana generally include:

• A fine of $390 to $1,000
• Six months driver’s license suspension
• Three to five years of informal probation
• Up to six months in county jail

DUI of marijuana is a priorable offense. Therefore, the penalties increase with each DUI conviction within ten years.

The prosecutor may charge you with felony DUID of marijuana if:

• You injured someone while driving under the influence of marijuana
• You have three or more wet reckless or DUI convictions within ten years
• You have any felony convictions within ten years

The punishment for a felony DUID of marijuana can include substantial prison sentences, formal probation, and longer driver’s license suspension periods. 

What Should You Do if You Are Arrested for DUI of Marijuana in California?

Do not plead guilty to the charges without talking to a California DUI defense lawyer. It is possible to beat charges of driving under the influence of marijuana. You want to avoid a DUI conviction on your driving record if possible.

A DUID of marijuana on your criminal record could have serious consequences. If your employer requires you to drive for employment, you could lose your job. Potential employers may look unfavorably upon past DUI convictions. A criminal record could affect your ability to obtain scholarships and some government aid.

If there is no way to avoid a conviction for DUID, your DUI defense lawyer negotiates the best possible plea agreement for your case. Chemical tests do not show impairment. The observed impairment method for determining marijuana impairment is also subject to challenge.

A skilled attorney uses this information to challenge the prosecution’s case. The prosecutor may be more willing to negotiate a favorable plea deal when they know you have an experienced, knowledgeable California DUI defense attorney ready to argue these defenses in court. 

If you have a felony DUI conviction on your record in California, you might want to consider applying for a Certificate of Rehabilitation (COR). There are several benefits of receiving a certificate that might avoid some of the long-term consequences of a DUI conviction. If you are unsure whether you need a COR, you can ask your California DUI attorney after you resolve your drunk driving charges. 

What is a Certificate of Rehabilitation?

The COR has some of the same benefits as a governor’s pardon, but not as many benefits as you receive from a full pardon by the governor. However, the state treats the certificate as an automatic application for a pardon by the governor. A Certificate of Rehabilitation does not clear your criminal record. However, it does show that you are now a law-abiding citizen.

One of the main benefits of a Certificate of Rehabilitation is to help prevent being denied a professional license based solely on a DUI conviction. With a Certificate of Rehabilitation, you can make a case to a prospective employer, landlord, or college that although you made a poor choice by drinking and driving, you learned a lesson.

Another benefit of obtaining a certificate is to avoid the requirement to register with the California sex offender’s registry for many people charged with a misdemeanor sex offense. 

However, some sex crimes are not eligible to receive a Certificate of Rehabilitation. Only a full governor’s pardon would avoid the requirement to register as a sex offender for individuals convicted of those crimes. 

Am I Eligible to Receive a Certificate of Rehabilitation After My DUI Conviction?

You must meet specific requirements to be eligible to receive a certificate. Your California DUI defense lawyer can review the qualifications in more detail, but generally you:

• Cannot have served time in county jail or prison or otherwise been incarcerated for a new criminal offense since the completion or dismissal of your sentence;
• Are not currently on probation for a felony offense;
• Were a resident of California for at least five continuous years immediately before you apply for a Certificate of Rehabilitation; AND,
• Have been rehabilitated, generally for a specific number of years.

Additionally, one of the following must apply to the offense:

• You were convicted of a felony and sentenced to serve time in prison or another state penal agency or institution; OR,

• You were convicted of a felony that resulted in probation, and the state expunged the conviction; OR,
• You were convicted of a misdemeanor sex crime listed in Penal Code §290, and the state expunged the conviction.

Several crimes or situations make a person ineligible to receive a Certificate of Rehabilitation. For example, you cannot receive a COR if you are serving mandatory life parole, are in the military, or are sentenced to death. In addition, misdemeanor offenses other than a sex offense in Penal Code §290 are ineligible for a certificate. 

Federal crimes and crimes committed outside California’s jurisdiction are ineligible for a Certificate of Rehabilitation. In addition, specific sex crimes are ineligible, and the court might determine a person ineligible if they are a continuing threat to a minor.

How Long is the Waiting Period to Obtain a Certificate of Rehabilitation for a Felony DUI Conviction?

Generally, a satisfactory period of rehabilitation is five years as a California resident plus an additional two to five years. However, the exact rehabilitation period depends on several factors, including the criminal offense. 

The waiting period for applying for a COR does not begin until you complete:

• Probation or parole;
• Community supervision; OR
• Mandatory supervision 

In other words, you must complete every term of your criminal sentence before the period of rehabilitation begins. Serious criminal offenses may require a minimum waiting period of nine to ten years. Most other offenses require a seven-year waiting period. 

The court may find that you have not waited long enough to prove you are rehabilitated. If so, you may need to wait longer and refile the petition.

How Do I Apply for a Certificate of Rehabilitation After a DUI Conviction?

You must file a petition with the Superior Court in the county where you reside. The petition for a Certificate of Rehabilitation must include a copy of your criminal record. 

The criminal record must include details about each DUI conviction you wish to include in the Certificate of Rehabilitation. The California Department of Justice provides copies of criminal records. There is a $25 fee for a copy of your criminal record.

The court does not charge a fee for a petition for a Certificate of Rehabilitation. You may pay an attorney to file the petition or file the petition without a lawyer. However, an experienced attorney understands the requirements for obtaining a certificate and how to present a compelling argument that you are rehabilitated. 

Generally, the court schedules a hearing for your petition. The court provides notice of the hearing to the governor’s office and the district attorney for the county of each conviction.

At the hearing, you present evidence of your rehabilitation. Support from the original prosecutor’s office can provide strong support for granting a Certificate of Rehabilitation. However, the judge considers all relevant factors when deciding to grant a certificate, including:

• Evidence you attend school or have a job
• Your education and work history
• Letters of recommendation 
• Proof of residence
• Evidence of volunteer work
• A statement explaining why you want a Certificate of Rehabilitation
• Prison and probation records
• The original trial and court proceedings
• Your ties to family and the community
• The length of time since you completed your sentence and/or probation

The court also listens to the arguments for or against granting the certificate made by the district attorney. If the court grants the COR, it forwards the certificate to the governor’s office, California Department of Justice, and the Board of Parole Hearings. If you have two or more DUI felonies, the court sends the certificate to the California Supreme Court.

Receiving a Certificate of Rehabilitation is an automatic application for a governor’s pardon. You do not need to take any further action. Receiving a pardon from the governor for a DUI felony conviction means restoring your gun rights, voting rights, and other privileges you lost because of a felony conviction. 

If the court denies your application for a Certificate of Rehabilitation, you can appeal the decision. However, the court charges a fee to file an appeal. So most people wait and try again at a later date.

How Can I Avoid the Need for a Certificate of Rehabilitation After Being Arrested for DUI in California?

You have several options for avoiding the need to seek a Certificate of Rehabilitation. First, you can hire a California DUI lawyer to fight the drunk driving charges. A DUI arrest is not a conviction. Potential DUI defenses your attorney may raise include, but are not limited to:

• The alcohol in your system did not impair your ability to drive
• The police officer lacked probable cause for a traffic stop or DUI arrest
• The law enforcement officer threatened you if you did not take the field sobriety tests or the roadside breathalyzer test
• The lab used contaminated or fermented blood samples for chemical testing
• You have a medical condition that mimics intoxication with slurred speech and lack of coordination, such as epilepsy seizures or diabetes sugar lows
• A health condition causes a falsely high BAC level on a breath test, such as acid reflux, diabetes, or GERD
• The police officers stopped you at an illegal DUI checkpoint

A successful DUI defense strategy requires your assistance. Tell your lawyer everything. Do not talk to the police or answer questions without talking with a California DUI defense lawyer.

Drivers can refuse pre-arrest breath tests and field sobriety tests without penalty. However, there are enhanced penalties for a DUI conviction after refusing a post-arrest chemical test. Regardless, your attorney may discover one or more problems with the case that could result in the chemical test results being inadmissible.

Another way to avoid petitioning for a Certificate of Rehabilitation is to plead your DUI charges down to a misdemeanor charge. You could then apply for DUI expungement. 

Most DUI convictions qualify for expungement. Expungement does not wipe the DUI from your driving record or erase it from your criminal record. However, an expungement in California removes the guilty verdict and dismisses the charges. Therefore, the only matter that appears on the criminal record is the DUI arrest, which can help you avoid some of the negative consequences of a DUI “conviction.”

Your attorney may have more success negotiating a favorable plea agreement than you if you represent yourself. The prosecutor does not tell defendants when they have valid defenses to drunk driving charges. They also do not tell you if there are weaknesses in the state’s case against you.

An attorney recognizes these facts and uses them to argue a better plea deal. A DUI plea agreement may include reduced charges and penalties. The best-case scenario for a plea deal is a dry reckless charge because it does not count as a priorable offense for future DUI convictions. Your DUI lawyer fights to get you the best outcome for your California DUI case.